Bradley Manning's Prosecutor Scolded For Refusal To Open Access To Court-Martial Proceedings

from the government-hates-us-for-our-freedom dept

As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.

Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.

The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

"Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.

Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.

Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.

Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.

In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.

While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.

Reader Comments

The US has lost the high moral ground when talking about censorship. Can we say now that it has lost any high moral ground when talking about human rights? Bloody 900 days, it's 3 years of your life throw away for absolutely nothing.

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The US Government has not only lost the moral high ground, but has also demonstrated that power takes precedence over the Constitution. Forget the 1st amendment, forget the right to speedy trial (in or out of the military), forget human rights (they only apply to other countries outside the US) forget the freedoms and the foundation of America. It is now all down to power brokering and Bradley Manning and his supporters don't have as much power as those who want to shut him up. Sick? Yes. True? Sadly

Does no one here understand the UCMJ and the security clearance that Manning had?

There are right and wrong ways to do things (or, correct and incorrect works too) and Manning did everything; wrong, incorrect, illegal and the article above is discussing the ability of the press to gain information on the court martial (not trial) NOT Manning's rights, how long he's been in "pre-trial confinement or any of the other items being discussed so far in the comments.

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Yes, as a matter of fact, I do. I have lived under the UCMJ and had a FBI-vetted security clearance.

Whether Manning violated the UCMJ is not the issue here either. SOmetimes matters of conscious will force people to violate their oaths. The issue here is that the citizenry would like to make sure that he got a fair shake on his court martial. Sometimes you have to do things that you are willing to pay the price for. But let's make sure that THAT is the case, and that he's being made a patsy.

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The US Government has not only lost the moral high ground, but has also demonstrated that power takes precedence over the Constitution. Forget the 1st amendment, forget the right to speedy trial (in or out of the military), forget human rights (they only apply to other countries outside the US) forget the freedoms and the foundation of America. It is now all down to power brokering and Bradley Manning and his supporters don't have as much power as those who want to shut him up. Sick? Yes. True? Sadly

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So are you saying that it is more important that he complied with his own obligations to his employers (which included reporting violations of military procedures in the "right way") than he complied with his oath to the constitution?

It is on record that he tried to report to his superiors the sending of intellectual commentators for torture and that they told him to shut up and get on with finding more to send to the same fate , but that has very little to do with the job he signed up for

Think about it before you make comments about the right and wrong way to do things.

Understand that I am not for Romney but neither am I for Obama. The campaign promise of transparency has shown up to be the farce that it was. Manning is the poster boy of how farcical it is.

When your authorities are the crooked ones, where do the people that know right from wrong have to turn? In Manning's case now where but outside.

The value of whistleblowers has always been they know where the skeletons are hid and why they are hid. Without that exposure, you have no clue what the government is doing in the people's name when you run up on this sort of situation.

For #5 AC's comments, you better hope there is someone around willing to blow the whistle before the troops are at your doorstep in our police state. Otherwise there will be no limit of holding back when someone decides to use the final solution.

Back during the days of the Vietnam war, the troops had a way of dealing with authority figures that wouldn't listen to the troops with experience. It amounted to them saying, "Next"!

he is still considered innocent until proven guilty

no matter what he did, there should still be freedom of information, and not 10 years from now. people can't understand what the big to do is over, if we don't know all the details. it feels like beginning of a big conspiracy?

Bradley Manning & U S Military

Reading your article, the book/movie "Too Young The Hero" of CALVIN LEON GRAHAM came to mind. The Treatment of MANNING may be similar or even worse than the Military Encarceration of 13 year old GRAHAM during WWII. POSSIBLY, IT JUST MIGHT BE WORTH SOME GENUINE PRESSURE FROM THE PRESS TO FIND OUT; THAT We The People who seek Justice for All and LOVE "Mercy More Than Life" might discover or find some respect for our leaders at any & all levels of government and the military. I was particularly impressed with the statement that "They do it because they can" not that it is logical, sensible or right.
Upward & Onward with Hope & Love Budd Steers

All of this, of course, is an attempt to turn the trial into a sideshow, and an attempt to take away from the horrible crimes that Manning is charged with.

As a whistleblower, I could imagine him perhaps letting out a few pages of documents on a particular subject. He did not. He took everything he could get his hands on (possibly at the direction of Assange, that is TBD), and turned it over - hundreds of thousands of documents. That isn't whistleblowing by any stretch.

Perhaps you need to concentrate a bit more of what was actually done, rather than worrying about who gets to see what at trial.

Plus, based on what the judge said, I don't see them slapping down the prosecution any more than they slapped down everyone else. Spin much there Tim?

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Yes, he released into the wild documents that embarrass the government and the military, and yet have never been proven to cause actual harm to anyone else. Let us focus on the reality, not the spew coming from the governmnet or people like you.

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"he released into the wild documents that embarrass the government and the military, and yet have never been proven to cause actual harm to anyone else."

Not exactly true. The release of documents like this very likely changed fundamentally relationships between the US and it's allies, it's more secret sources, and the like. They have made it less likely that someone would want to confidentially help the US, as they fear they will not be protected completely.

Actual harm here will always be hard to prove, because the government(s) in question to want to reveal anything more than is already out there. Hiding and saying "nothing happened" is moronic. Rocks don't drop in the water without ripples, plain and simple. You might not see the effects,but they are out there.

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"Not exactly true. The release of documents like this very likely changed fundamentally relationships between the US and it's allies, it's more secret sources, and the like. They have made it less likely that someone would want to confidentially help the US, as they fear they will not be protected completely."

Honeybun, only because the cables demonstrate that the US and other diplomats were a bunch of hypocrites that had been lying through their teeth and thought they were superior to the rest of the world. It had nothing to do with troop positions or anything that could put young American lives in danger. It simply showed us that America thinks that the rest of us are just pawns in their chessboard and our personal lives are supremely irrelevant to them. Who on earth is going to feel the same about American when they have seen a few home truths?. Don't make the mistake of shooting the messenger.

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Given that the highest security classification of the documents leaked was "secret" and that a large part weren't even classified, your argument ends up as nothing. no Top secret information that could endanger lives was even touched on. Only stuff that was declassified or over classified that left a few of the world's diplomats look less than diplomatic. Perhaps you are the one who should "concentrate a bit more of what was actually done" instead of believing everything you read in Fox News.